SABIT ULLAH KHAN, J:- Through the instant petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, the petitioner has prayed for the following relief: "It is therefore, very humbly prayed that, on acceptance of the present petition, appropriate writ(s) may kindly be issued against the respondents whereby: a) To set aside the appointment order of respondent No. 6 bearing No. DG/PHA/Admn/Recruit/5256 dated 26.02.2018, respondent No. 7 bearing No. DG/PHA/Adnm/Reeruit/5257 dated 26.02.2018, respondent No. 8 bearing NO. DG/PHA/Admn/Recruit/5258 dated 26.02.2018, respondent No. 9 bearing No. DG/PHA/Admn/Recruit/5259 dated 26.02.2018, being arbitrary, perverse, illegal, without lawful authority and jurisdiction and void ab initio; b) Directing the respondents No. 1 to 4 to appoint the petitioner to the post of Sub Engineer (BPS- 11) advertised in the Daily "Aaj" dated 10.10.2017, since the date on which the respondents No. 6 to 9 were earlier got appointed, with all of back benefits." .
2. The petitioner contends that the qualification required for the advertised post was three years Diploma in Associate Engineering (DAE) in Civil Technology, however, respondents No.6 to 9 possess a four-year Bachelor of Science (B.Sc) Degre in Civil Engineering, which according to the petitioner is neither satisfied the prescribed qualification nor is relevant under the applicable recruitment Rules. It is alleged that their degrees were erroneously treated both as minimum qualification and as an additional higher qualification, thereby awarding them extra marks for, a single decree, a practice claimed contrary to settled law.
3. The petitioner further alleges that the appointment of respondents No.6 to 9 were not made on the basis of merit but were instead influenced by political consideration, resulting the undue favoritism and violation of statutory rules and policies. Reliance was placed on the case law including case titled "The Collector of Sales Tax, Gujranwala & others Vs M/S Super Asia Muhammad Din and Sons & others" reported as 2017 SCMR 1427 and case titled "Naeem Ahmad Abbasi Vs Azad Jammu & Kashmir Government through Chief Secretary & 04 others" reported as 2014 PLC (C.S) 237 and 2013 SCMR 55.
4. In rebuttal, learned counsel for respondents submitted that a total 447 candidates appeared in the test, from which, 49 top scorers including the petitioner, were shortlisted for interviews. It was further argued that, as per the criteria set by the Provincial Government in Esta Code 2011, additional marks were to be awarded for higher qualification (10 marks) and for interview performance (08 marks), being holder of higher qualification were awarded 6 out of the 10 additional marks for academic excellence and were ultimately selected based on their aggregate score. Their appointments were formalized vide orders dated 26.02.2018. Reliance was placed on case law including case titled "Government of Khyber Pakhtunkhwa through Secretary Communication & Works Department & another Vs Bacha Alam Khan & another" reported as 2022 SCMR 718 and Regulation No. 19(f)(ii) of the Khyber Pakhtunkhwa Public Service Commission Regulations 2017.
5. Arguments of learned counsels for the parties heard and record was thoroughly perused.
6. Upon examining the petition, it becomes evident that the petitioner does not dispute the conduct of test, the interview or the making interview panel rather his grievance rests on two main contentions: firstly, that marks were awarded twice for the same qualification once as the base qualification and again as a higher qualification; and secondly, that the candidates possessing a higher degree than the one specifically prescribed in the advertisement were granted undue preference, which according to him, is not permissible under the recruitment Rules.
7. Respondents No. 6 to 9 hold a four-year B.Sc. Degree in Civil Engineering, whereas the petitioner holds a D.A.G (03 years) in Civil Technology. The required qualification as per the advertisement was a Diploma in Associate Engineering in Civil Technology, which is considered equivalent to the Higher Secondary School Certificate (HSSC/F.A./F.Sc.). As per the Esta Code, 2011 under heading 'comparative grading of qualification" marks are awarded based on how much higher the candidate's qualification is from the prescribed one. Qualification level above prescribed marks awarded the relevant regulation stipulates: B Higher Qualification (Next above the qualification prescribed under the rules)
One Stage above 06 Two Stage above 08 Three stage above 12 The petitioner, having passed Matriculation and obtained a DAE, was awarded 35 + 35 marks. On the other hand, respondents No. 6 to 9 were also awarded 35 + 35 marks for Matriculation and F.Sc.
(Pre-Engineering), and an additional 6 marks for their B.Sc. Degree in Civil Engineering, which is considered one stage above the prescribed qualification. The mechanism adopted by the respondent-department appears consistent with prescribed recruitment Policy and does not amount to awarding marks twice for single qualification. The interpretation of the petitioner, alleging double benefits, is misplaced and based on incorrect reading of Rules.
8. Regarding the contention that substituting the required qualification with a higher qualification violates recruitment policy, the respondent-department submitted a letter issued by the Director Recruitment, Khyber Pakhtunkhwa Public Service Commission, bearing No. PSC/DR/011709 dated 10.11.2020, wherein reference is made to Regulation No. 19(f)(ii) of the Khyber Pakhtunkhwa Public Service Commission Regulations, 2017. The regulation clearly provides that candidates who possess qualifications higher than the prescribed qualcation in the relevant field of study shall also be considered eligible. Thus, it is a settled principle that a higher qualification in the relevant field does not disqualify a candidate from applying for a position that requires a lesser qualification, denying such a candidate eligibility solely on the ground of being 'over qualified' would be arbitrary to law and discriminatory. In this regard, reliance is placed on case of "Waqas Aslam vs. Lahore Electric Supply Company" (2018 PLC CS 243) wherein a candidate possessing higher qualification was considered for the post and it was held that; "Refusal to appoint petitioners merely on the ground of their being over-qualified was an encroachment upon their rights. Petitioners had been deprived of their rights and they had suffered illegal exercise of discretion. Impugned actions were in violation of merit and transparency. Where appointments were to be made in exercise of discretionary powers then such powers had to be employed in a reasonable manner. Exercise of such powers unreasonably could be judicially reviewed. Validity of appointment process could be checked through selection procedure prescribed and adopted followed with rigour, objectively, transparency and due diligence to ensure obedience to law. Process of appointment would be unguided, perfunctory, mechanical, haphazard, discrete and unreasonable in absence of criteria.
Impugned criteria/ process had never been geared to search and select the best man for the post. Such act of authorities was discriminatory and in violation of Art.25 of the Constitution. Any criteria/policy/instruction depriving the over-qualified persons from applying a particular job could not be termed as reasonable classification under the law. Class of less-qualified persons could not be put in advantageous position vis-a-vis over-qualified persons. Reason posed by the authority for not considering the petitioners for appointment was not reasonable rather resulted in inequality among citizens-Right person should be engaged in the right job which could not be done unless there was an open competition. Posts could not be filled by the method of competition when arbitrary classification was made between different classes of citizens. Any departmental instruction/direction/rules which were inconsistent with the Fundamental Rights were void. Constitution being a basic document was to be treated higher than other instructions/rules/statutes. When a document in the shape of law/rules/instructions/criteria given by any competent authority was in conflict with the Constitution then to such extent same was liable to be declared unconstitutional. Every citizen should have the right subject to such qualification if any prescribed by law to enter upon any lawful profession or occupation and to conduct any lawful trade or business. Said fundamental right would include the right of a citizen to compete and participate for appointment to a post in any government department. Right of open competition could not be exercised unless process of appointment was transparent, fair, just and free from any complaint. Act of department had depicted discriminatory treatment which could not be recognized under the law. All persons were equal before the law and were entitled to equal protection of law. Impugned criteria/policy of the department being subordinate legislation could not control or override law and Constitution. Criteria/policy could be challenged if same was in conflict with law or Fundamental Rights of citizens. Right guaranteed under the Constitution could no taken away by ignoring any provision of the Constitution. State was bound to secure the well-being of the citizens and to promote and protect employm ent. Limitation could be imposed but such limitation must be rational and proportionate. If such limitation was imposed through an executive action then such action must be taken in exercise of powers conferred by law or in accordance with Constitution or Fundamental Rights guaranteed thereunder. Impugned departmental instruction/ criteria/policy was not backed by any law and same was not sustainable in the eye of law.
Impugned orders passed by the department were declared to be illegal and without lawful authority."
9. The petitioner's argument, which is based on the legal doctrine of casus omissus, is fundamentally flowed and cannot be sustained. The doctrine of casus omissus to the situation where the legislature has inadvertently left gap in law, an omission, which according to the petitioner, warrants judicial intervention to fill the perceived void, however, such reliance on this principle in the present case is wholly misplaced. The matter in hand, specifically relating to the requirement of higher academic qualification, has not been left unaddressed by the legislature or relevant regulatory authorities. On the contrary, this issue has been clearly and comprehensively dealt with under Regulation 19 (DOD, which explicitly lays down the criteria concerning education qualification.
10. Therefore, it cannot be reasonably argued that any legislative silence or oversight exist that would necessitate judicial creativity or interpretation to read something into the regulation that is not already there. Courts are bound to interpret laws as they are, not as they might wish them to be. Where the legislature has deliberately provided for certain qualification and not included other, it is not within the Court's jurisdiction to supply the alleged omissions. The regulatory framework is self-contained, unambiguous and leaves no scope for implying any additional requirement through judicial construction under the guise of casus omissus. Hence, the petitioner's claim that judicial filling of a supposed legislative gap is required, stands rejected as being legally untenable and factually unsupported.
11. In view of the foregoing discussion, the instant writ petition, being devoid of merit, is hereby dismissed.